Exhibit 10.iii.(q)
EMPLOYMENT AGREEMENT
THIS AGREEMENT between IMC Global Inc., a Delaware corporation (the
"Company"), and E. Xxxx Xxxx (the "Executive"), is made as of the 13th
day of July, 1999, to become effective as provided below.
WHEREAS, the Company wishes to attract and retain well-qualified
executives and key personnel and to assure itself of the continuity of
its management.;
WHEREAS, the Executive is an officer or other key executive of the
Company with significant management responsibilities in the conduct of
its business;
WHEREAS, the Company recognizes that the Executive is a valuable
resource of the Company and the Company desires to be assured of the
continued services of the Executive;
WHEREAS, the Company is concerned that in the event of a possible or
threatened change in control of the Company, uncertainties necessarily
arise and the Executive may have concerns about the continuation of his
employment status and responsibilities and may be approached by others
offering competing employment opportunities, and the Company therefore
desires to provide the Executive assurance as to the continuation of
his employment status and responsibilities in such event;
WHEREAS, the Company further desires to assure that, if a possible or
threatened change in control should arise and the Executive should be
involved in deliberations or negotiations in connection therewith, the
Executive would be in a secure position to consider and participate in
such transaction as objectively as possible in the best interests of
the Company and to this end desires to protect the Executive from any
direct or implied threat to his financial well being;
WHEREAS, the Executive is willing to continue to serve as such but
desires assurance that in the event of such a change in control he will
continue to have the employment status and responsibilities he could
reasonably expect absent such event and that in the event this turns
out not to be the case he will have fair and reasonable severance
protection on the basis of his service to the Company to that time.
NOW, THEREFORE, it is hereby agreed by and between the parties as
follows:
1. Operation of Agreement. The "effective date of this
Agreement" shall be the date on which a change in control of the
Company (as described in Section 2) occurs. This Agreement shall not
become effective, and the Company shall have no obligation hereunder,
if the employment of the Executive with the Company shall terminate
prior to a change in control of the Company. The Executive shall have
no right on account of this Agreement to be retained in the employ of
the Company or to be retained in any particular position in the
Company, unless and until a change in control has occurred.
2. Change in Control. The term "change in control" shall mean,
and be deemed to have occurred as of the first day that any one or more
of the following conditions have been satisfied.
(a) the acquisition by any individual, entity or group (a
"Person"), including any "person" within the meaning of Section 13
(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), of beneficial ownership within the
meaning of Rule 13d-3 promulgated under the Exchange Act, of 15%
or more of either (i) the then outstanding shares of common stock
of the Company (the "Outstanding Company Common Stock") or, (ii)
the combined voting power of the then outstanding securities of
the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities");
excluding, however, the following: (A) any acquisition directly
from the Company (excluding any acquisition resulting from the
exercise of an exercise, conversion or exchange privilege unless
the security being so exercised, converted or exchanged was
acquired directly from the Company); (B) any acquisition by the
Company, (C) any acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (D) any acquisition by
any corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of subsection (c) of this definition;
(b) individuals who, as of the date hereof, constitute the
Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of such Board; provided that any
individual who becomes a director of the Company subsequent to the
date hereof whose election, or nomination for election by the
Company's stockholders, was approved by the vote of at least a
majority of the directors then comprising the Incumbent Board
shall be deemed a member of the Incumbent Board; and provided
further, that any individual who was initially elected as a
director of the Company as a result of an actual or threatened
election contest, as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act, or any other
actual or threatened solicitation of proxies or consents by or on
behalf of any Person other than the Board shall not be deemed a
member of the Incumbent Board;
(c) approval by the stockholders of the Company of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company (a "Corporate Transaction"); excluding, however, a
Corporate Transaction pursuant to which (i) all or substantially
all of the individuals or entities who are the beneficial owners,
respectively, of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such
Corporate Transaction will beneficially own, directly or
indirectly, more than 60% of, respectively, the outstanding shares
of common stock, and the combined voting power of the outstanding
securities of such corporation entitled to vote generally in the
election of directors, as the case may be, of the corporation
resulting from such Corporate Transaction (including, without
limitation, a corporation which as a result of such transaction
owns the Company or all or substantially all of the Company's
assets either directly or indirectly) in substantially the same
proportions relative to each other as their ownership, immediately
prior to such Corporate Transaction, of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities, as the
case may be, (ii) no Person (other than: the Company; any
employee benefit plan (or related trust) sponsored or maintained
by the Company or any corporation controlled by the Company; the
corporation resulting from such Corporate Transaction; and any
Person which beneficially owned, immediately prior to such
Corporate Transaction, directly or indirectly, 25% or more of the
Outstanding Company Common Stock or the Outstanding Voting
Securities as the case may be) will beneficially own, directly or
indirectly, 25% or more of, respectively, the outstanding shares
of common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the outstanding
securities of such corporation entitled to vote generally in the
election of directors, and (iii) individuals who were members of
the Incumbent Board will constitute at least a majority of the
members of the Board of Directors of the corporation resulting
from such Corporate Transaction; or
(d) approval by the stockholders of the Company of a plan of
complete liquidation or dissolution of the Company.
3. Employment. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in
the employ of the Company, for the period commencing on the effective
date of this Agreement and ending on the earlier to occur of (a) the
last day of the month in which occurs the third anniversary of the
effective date of this Agreement or (b) the last day of the month in
which the Executive attains mandatory retirement age pursuant to the
terms of a mandatory retirement plan of the Company as such were in
effect and applicable to the Executive immediately prior to the
effective date of this Agreement (the "Employment Period"). During the
Employment Period, the Executive shall exercise such position and
authority and perform such responsibilities as are commensurate with
the position and authority being exercised and duties being performed
by the Executive immediately prior to the effective date of this
Agreement, which services shall be performed at the location where the
Executive was employed immediately prior to the effective date of this
Agreement or at such other location as the Company may reasonably
require; provided that the Executive shall not be required to accept
any such other location that he deems unreasonable in the light of his
personal circumstances.
4. Compensation and Benefits. During the Employment Period, the
Executive shall receive the following compensation and benefits:
(a) He shall receive an annual base salary which is not less
than his annual base salary immediately prior to the effective
date of this Agreement, with the opportunity for increases, from
time to time thereafter which are in accordance with the
Company's regular executive compensation practices.
(b) He shall be eligible to participate on a reasonable basis,
and to continue his existing participation, in annual incentive,
stock option, restricted stock, long-term incentive performance
plans, and any other incentive compensation plan which provides
opportunities to receive compensation in addition to his annual
base salary, which are the greater of (i) the opportunities
provided by the Company for executives with comparable duties or
(ii) the opportunities under any such plans in which he was
participating immediately prior to the effective date of this
Agreement.
(c) He shall be entitled to receive and participate in salaried
employee benefits (including, but not limited to, medical, life
and accident insurance, investment, stock ownership, and
disability benefits) and perquisites which are the greater of
(i) the employee benefits and perquisites provided by the
Company to executives with comparable duties or (ii) the
employee benefits and perquisites to which he was entitled or in
which he participated immediately prior to the effective date of
this Agreement.
(d) He shall be entitled to continue to receive service credit
for retirement benefits and to be entitled to receive retirement
benefits under and pursuant to the terms of the Company's
qualified retirement plan for salaried employees and any
successor or other retirement plan or agreement in effect on the
effective date of this Agreement in respect of his retirement,
whether or not a qualified plan or agreement, so that his
aggregate retirement benefit from all such plans and agreements
(regardless of when he begins to receive such benefit) will be
not less than it would be had all such plans and agreements in
effect immediately prior to the effective date of this Agreement
continued to be in effect without change until and after he
begins to receive such benefit.
5. Termination. The term "Termination" shall mean termination,
prior to the expiration of the Employment Period, of the employment of
the Executive with the Company for any reason other than death,
disability (as described below), cause (as described below), or
voluntary resignation (as described below).
(a) The term "disability" means physical or mental incapacity
qualifying the Executive for long-term disability under the
Company's long-term disability plan.
(b) The term "cause" means (i) the willful and continued failure
of the Executive substantially to perform his duties with the
Company (other than any failure due to physical or mental
incapacity) after a demand for substantial performance is
delivered to him by the Board of Directors which specifically
identifies the manner in which the Board believes he has not
substantially performed his duties or (ii) willful misconduct
materially and demonstrably injurious to the Company. No act or
failure to act by the Executive shall be considered "willful"
unless done or omitted to be done by him not in good faith and
without reasonable belief that his action or omission was in the
best interest of the Company. The unwillingness of the Executive
to accept any or all of a change in the nature or scope of his
position, authorities or duties, a reduction in his total
compensation or benefits, a relocation that he deems unreasonable
in light of his personal circumstances, or other action by or
request of the Company in respect of his position, authority, or
responsibility that he reasonably deems to be contrary to this
Agreement, may not be considered by the Board of Directors to be
a failure to perform or misconduct by the Executive.
Notwithstanding the foregoing, the Executive shall not be deemed
to have been terminated for cause for purposes of this Agreement
unless and until there shall have been delivered to him a copy of
a resolution, duly adopted by a vote of three-quarters of the
entire Board of Directors of the Company at a meeting of the
Board called and held (after reasonable notice to the Executive
and an opportunity for the Executive and his counsel to be heard
before the Board) for the purpose of considering whether the
Executive has been guilty of such a willful failure to perform or
such willful misconduct as justifies termination for cause
hereunder, finding that in the good faith opinion of the Board
the Executive has been guilty thereof and specifying the
particulars thereof.
(c) The resignation of the Executive shall be deemed "voluntary"
if it is for any reason other than one or more of the following:
(i) The Executive's resignation or retirement (other
than mandatory retirement, as aforesaid) is requested by
the Company other than for cause;
(ii) Any significant change in the nature or scope of
the Executive's position, authorities or duties from those
described in Section 3;
(iii) Any reduction in his total compensation or
benefits from that provided in Section 4;
(iv) The breach by the Company of any other provision
of this Agreement; or
(v) The reasonable determination by the Executive
that, as a result of a change in control of the Company and
a change in circumstances thereafter significantly
affecting his position, he is unable to exercise the
authorities and responsibilities attached to his position
and contemplated by Section 3.
(d) Termination that entitles the Executive to the payments and
benefits provided in Section 6 shall not be deemed or treated by
the Company as the termination of the Executive's employment or
the forfeiture of his participation, award, or eligibility for
the purpose of any plan, practice or agreement of the Company
referred to in Section 4.
6. Termination Payments and Benefits. In the event of and
within 30 days following Termination, the Company shall pay to the
Executive:
(a) His base salary and all other benefits due him as if he had
remained an employee pursuant to this Agreement through the
remainder of the month in which Termination occurs less
applicable withholding taxes and other authorized payroll
deductions;
(b) An amount equal to the target award for the Executive under
the Company's annual bonus plan for the fiscal year in which
Termination occurs, reduced pro rata for that portion of the
fiscal year not completed as of the end of the month in which
Termination occurs, provided that if the Executive has deferred
his award for such year under the Company's deferred compensation
plan, the payment due the Executive under this Paragraph (b)
shall be paid in accordance with the terms of the deferral;
(c) An amount equal to the target award for the Executive under
the Company's long-term incentive plan for the year in which
Termination occurs, reduced pro rata for that portion of the
fiscal year not completed as of the end of the month in which
Termination occurs; and
(d) A lump sum severance allowance in an amount which is equal
to the sum of the amounts determined in accordance with the
following subparagraphs (i) and (ii):
(i) An amount equivalent to three times his annual
base salary at the rate in effect immediately prior to
Termination; and
(ii) An amount equivalent to three times the highest
annual bonus earned under the Company's Management
Incentive Compensation Program, or successor bonus plan in
effect from time to time, during the three consecutive
complete bonus years immediately prior to Termination;
provided, however, that in the event that the Executive's
employment is terminated prior to the completion of three
complete bonus years, any prorated annual bonus received by
the Executive shall be annualized and the bonus years in
which the Executive's employment commences or terminates
shall be deemed to be "complete bonus years" for purposes
of determining the highest annual bonus earned by the
Executive during the three complete bonus years immediately
prior to Termination.
7. Non-Competition and Confidentiality. The Executive agrees
that:
(a) there shall be no obligation on the part of the Company to
provide any further payments or benefits (other than payments or
benefits already earned or accrued) described in Section 6 if,
when, and so long as the Executive shall be employed by or
otherwise engage in any business which is competitive with any
business of the Company or of any of its subsidiaries, as such
business existed as of the effective date of this Agreement, in
which the Executive was engaged during his employment, and if
such employment or activity is likely to cause or causes serious
damage to the Company or any of its subsidiaries; and
(b) during and after the Employment Period, he will not divulge
or appropriate to his own use or the use of others any secret or
confidential information pertaining to the business of the
Company or any of its subsidiaries obtained during his employment
by the Company, it being understood that this obligation shall
not apply when and to the extent any of such information becomes
publicly known or available other than because of his act or
omission.
8. Arrangements Not Exclusive or Limiting. The specific
arrangements referred to herein are not intended to exclude or limit
the Executive's participation in other benefits available to executive
personnel generally, or to preclude or limit other compensation or
benefits as may be authorized by the Board of Directors of the Company
at any time, or to limit or reduce any compensation or benefit to which
the Executive would be entitled but for this Agreement.
9. Enforcement Costs. The Company is aware that upon the
occurrence of a change in control, the Board of Directors or a
stockholder of the Company may then cause or attempt to cause the
Company to refuse to comply with its obligations under this Agreement,
or may cause or attempt to cause the Company to institute, or may
institute, litigation seeking to have this Agreement declared
unenforceable, or may take, or attempt to take, other action to deny
the Executive the benefits intended under this Agreement. In these
circumstances, the purpose of this Agreement could be frustrated. It
is the intent of the parties that the Executive not be required to
incur the legal fees and expenses associated with the protection or
enforcement of his rights under this Agreement by litigation or other
legal action because such costs would substantially detract from the
benefits intended to be extended to the Executive hereunder, nor be
bound to negotiate any settlement of his rights hereunder under threat
of incurring such costs. Accordingly, if at any time after the
effective date of this Agreement, it should appear to the Executive
that the Company is or has acted contrary to or is failing or has
failed to comply with any of its obligations under this Agreement for
the reason that it regards this Agreement to be void or unenforceable
or for any other reason, or that the Company has purported to terminate
his employment for cause or is in the course of doing so in either case
contrary to this Agreement, or in the event that the Company or any
other person takes any action to declare this Agreement void or
unenforceable, or institutes any litigation or other legal action
designed to deny, diminish or to recover from the Executive the
benefits provided or intended to be provided to him hereunder, and the
Executive has acted in good faith to perform his obligations under this
Agreement, the Company irrevocably authorizes the Executive from time
to time to retain counsel of his choice at the expense of the Company
to represent him in connection with the protection and enforcement of
him rights hereunder, including without limitation representation in
connection with termination of his employment contrary to this
Agreement or with the initiation or defense of any litigation or other
legal action, whether by or against the Executive or the Company or any
director, officer, stockholder or other person affiliated with the
Company, in any jurisdiction. The reasonable fees and expenses of
counsel selected from time to time by the Executive as hereinabove
provided shall be paid or reimbursed to Executive by the Company on a
regular, periodic basis upon presentation by the Executive of a
statement or statements prepared by such counsel in accordance with its
customary practices, up to a maximum aggregate amount of $200,000.
Counsel so retained by the Executive may be counsel representing other
officers or key executives of the Company in connection with the
protection and enforcement of their rights under similar agreements
between them and the Company, and, unless in his sole judgment use of
common counsel could be prejudicial to him or would not be likely to
reduce the fees and expenses chargeable hereunder to the Company, the
Executive agrees to use his best efforts to agree with such other
officers or executives to retain common counsel.
10. Notices. Any notices, requests, demands and other
communications provided for by this Agreement shall be in writing and
personally delivered by hand or sent by registered or certified mail,
if to the Executive, to him at the last address he has filed in writing
with the Company or, if to the Company, to its corporate secretary at
its principal executive office.
11. Non-Alienation. The Executive shall not have any right to
pledge, hypothecate, anticipate, or in any way create a lien upon any
amounts provided under this Agreement, and no payments or benefits due
hereunder shall be assignable in anticipation of payment either by
voluntary or involuntary acts or by operation of law. So long as the
Executive lives, no person, other than the parties hereto, shall have
any rights under or interest in this Agreement or the subject matter
hereof.
12. Entire Agreement; Amendment. This Agreement constitutes the
entire agreement superseding any prior agreement of the parties in
respect of the subject matter hereof. No provision of this Agreement
may be amended, waived, or discharged except by the mutual written
agreement of the parties. The consent of any other person to any such
amendment, waiver or discharge shall not be required.
13. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Company, its successors or assigns, by
operation of law or otherwise, including without limitation any
corporation or other entity or person which shall succeed (whether
direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business and/or assets of the
Company, and the Company will require any successor, by agreement in
form and substance satisfactory to the Executive, expressly to assume
and agree to perform this Agreement. Except as otherwise provided
herein, this Agreement shall be binding upon and inure to the benefit
of the Executive and his legal representatives, heirs, and assigns;
provided, however, that in the event of the Executive's death prior to
payment or distribution of all amounts, distributions, and benefits due
him hereunder, each such unpaid amount and distribution shall be paid
in accordance with this Agreement to the person or persons designated
by the Executive to the Company to receive such payment or distribution
and in the event the Executive has made no applicable designation, to
the person or persons designated by the Executive as the beneficiary or
beneficiaries of proceeds of life insurance payable in the event of the
Executive's death under the Company's group life insurance plan.
14. Governing Law. Except to the extent required to be governed
by the law of the State of Delaware because the Company is incorporated
under the laws of that state, the validity, interpretation, and
enforcement of this Agreement shall be governed by the law of whichever
of the State of Illinois or the State of Delaware that to the greater
extent permits or does not prevent the enforcement of this Agreement in
accordance with its terms.
15. Severability. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for
any reason, the remaining provisions of this Agreement shall be
unaffected thereby and shall remain in full force and effect.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all
of which together constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
signed by its duly authorized officer and the Executive has signed this
Agreement as of the day and year first above written.
IMC GLOBAL INC. E. XXXX XXXX
By:________________________ __________________________
Title: Chairman of the Board
of Directors and Chief
Executive Officer
